Volume 112

Running (Away) with the Land: A (Super) Market Problem

by Jordan Jackson


When the Supreme Court issued its 1948 opinion in Shelley v. Kraemer, it put an end to deploying discriminatory restrictive covenants to further racial segregation. Footnote #1 content: 334 U.S. 1, 23 (1948). The belated application of the Fourteenth Amendment’s gauze stopped the bleeding, but the wound would fester for years—decades into the future—as property values rose and intergenerational assets accumulated. Footnote #2 content: See Berta Esperanza Hernandez-Truyol & Shelbi D. Day, Property, Wealth, Inequality and Human Rights: A Formula for Reform, 34 IND. L. REV. 1213, 1216–17, 1222 (2001). By weakly applying the Fair Housing Act’s provisions, denying mortgages, and overtly engaging in discriminatory redlining to keep minorities confined to inner cities and out of the new suburbia, American institutions—from courts to lenders and banks—blocked an entire group of citizens “from perhaps the greatest wealth accumulation period/opportunity in U.S. history.” Footnote #3 content: Id. at 1222. And as the years ticked forward, the injury remained a superficial scar, imprinted by time’s jagged attempts to stitch it closed.

Today, these lasting effects persist, but the impacts of restrictive covenants in other contexts have cropped up too. These burdens are shouldered all the same—if not by design, then by society’s willful tolerance. This Note, in part, explores the systems fortifying that tolerance. It examines the effects of restrictive covenants outside of housing’s domain and in a different type of market: the supermarket. By tying national grocery chains’ use of these restrictions to issues disproportionately impacting minority populations, this Note seeks to illustrate both why and how the history of restrictive covenants should inform the solutions. And against this foundational backdrop, this Note offers a broader look at potential remedies through existing legal avenues. Footnote #4 content: Specifically, this Note aims to expand the argument by proposing ideas to reframe litigation strategies, raising antirust-specific points in the context of both theory and geographic market structure, and suggesting ways to strengthen current federal and state initiatives.

Part I introduces the concept of restrictive covenants and discusses their use in the real property context. Part II argues that supermarkets, by scooping up land and adding restrictive covenants to deeds, contribute to food deserts that lead to adverse health and economic implications for low-income and minority communities. Part III provides an overview of the case law, analyzes why challenges to these anticompetitive actions have largely failed, and suggests that opening the courtroom door to a different group of litigants might lead to more successful outcomes. Part IV highlights issues with the current implementation of antitrust law—specifically through a discussion of both theory and judicial methods of market analysis—and concludes by proposing several structural and systemic changes. Finally, Part V asserts that recalibrating public policy goals through a federally backed top-down strategy or a state-driven bottom-up approach could set proper barriers in place to effectively lock out the tactics supermarkets use to lock up land.

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